Madras High Court
Rethinam vs Minor Ashiya on 7 August, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
C.R.P.(MD)No.1548 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 07.08.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.R.P.(MD)No.1548 of 2024
1.Rethinam
2.Minor Aswini
3.Minor.Aslin ... Petitioners/Respondents 1 to 3/
Decree Holder/Plaintiffs
(Petitioners 2 and 3 are represented by the
1st petitioner / Rethinam)
Vs.
1.Minor Ashiya
(First respondent is represented by the
2nd respondent / Usha)
2.Usha ... Respondents 1 and 2/Claim Petitioners/
Respondents 2 and 3
3.Alban Raj ... 3rd Respondent/4th Respondent/
Judgment Debtor/Defendant
Prayer: Writ petition is filed under Article 227 of the Constitution of India,
against the fair and decretal order dated 10.04.2024 passed in E.A.No.2 of 2020
in E.P.No.22 of 2019 in O.S.No.12 of 2016 on the file of Principal District
Munsif, Padmanabhapuram.
For Petitioners : Mr.A.Prabhu Selva Kumar
For Respondents : Mr.S.C.Herold Singh
***
https://www.mhc.tn.gov.in/judis
1/6
C.R.P.(MD)No.1548 of 2024
ORDER
Heard both sides.
2.The first petitioner is none other than the mother of the third
respondent herein. The petitioners 2 and 3 are the granddaughter of the first
petitioner born through Thangam. Thangam is no more. The third respondent
after the demise of Thangam married the second respondent herein and through
the said wedlock, the first respondent was born. The grandchildren born
through the first wife are with the first petitioner. O.S.No.12 of 2016 was filed
and maintenance decree was passed. In the said suit, the petition mentioned
property was also attached on 19.07.2016. The suit was filed on 19.01.2016.
In the intervening period, the third respondent herein had settled the said
property in favour of the respondents 1 and 2 on 15.02.2016. To enforce the
decree, execution petition was filed on 06.06.2019. In the said execution
petition, the respondents 1 and 2 herein filed E.A.No.2 of 2020 putting forth
their claim. E.A. was allowed on 10.04.2024. Questioning the same, this civil
revision petition came to be filed.
3.Even though I found the contentions advanced by the learned counsel
for the revision petitioners to be highly persuasive, I am not in a position to
https://www.mhc.tn.gov.in/judis
grant relief for the reasons that the revision petitioners ought to have filed an
appeal. Admittedly, the respondents 1 and 2 herein filed their claim petition
under Order XXI Rule 58 of the Civil Procedure Code. The claim was allowed.
Order XXI Rule 58(4) reads that where any claim or objection has been
adjudicated upon under this Rule, the Order made thereon shall have the same
force and be subject to the same conditions as to appeal or otherwise as if it was
a decree.
4.The petitioner should therefore file only a first appeal questioning the
impugned order which has the force of a decree. My attention is also drawn to
the order dated 03.08.2010 passed in C.R.P.(NPD)(MD)No.523 of 2010 in
which it was held that civil revision petition filed against Order XXI Rule 58 of
Civil Procedure Code is not maintainable. In this view of the matter, this civil
revision petition is dismissed as not maintainable.
5.Even though, this civil revision petition has been dismissed as not
maintainable, I direct the Registry to return the certified copies of fair and
decretal order dated 10.04.224 made in E.A.No.2 of 2020 in E.P.No.22 of 2019
in O.S.No.12 of 2016 on the file of Principal District Munsif,
Padmanabhapuram to the learned counsel for the revision petitioners. The
https://www.mhc.tn.gov.in/judis
learned counsel for the revision petitioners states that first appeal will be filed
before the first appellate Court within a period of seven days from the date of
receipt of a copy of this order. If such an appeal is filed, it shall be entertained
without reference to limitation and it shall also be disposed of within a period
of three months thereafter. No costs.
07.08.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
ias
Issue order copy on 08.08.2024.
To:
The Principal District Munsif,
Padmanabhapuram.
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN, J.
ias
07.08.2024
https://www.mhc.tn.gov.in/judis
